Hot Docs: Former ESPN exec sues over “masturbation” statements

November 10, 2011

Mile Lie ClubGossiping goes on in just about every office setting, but the gossip that spread in the Content Development and Enterprises department at ESPN is anything but common.

According to a recently-filed defamation lawsuit, a woman claimed that her supervisor had masturbated while sitting next to ESPN reporter Erin Andrews – who was voted Playboy.com’s “America’s Sexiest Sportscaster” in 2007 – on a commercial airline flight.

The woman, Joan Lynch, also claimed that her supervisor, Keith Clinkscales, had threatened Andrews with retaliation if she revealed the incident to Clinkscales’ superiors at ESPN; Lynch was not on the plane at the time of the alleged incident.

Lastly, the complaint alleges that Lynch falsely claimed that Clinkscales physically assaulted her in a production trailer on December 31, 2007.

According to the complaint, what actually happened that day was a verbal reprimand by Clinkscales directed at Lynch for “her incompetence with respect to the production of a highly dangerous daredevil stunt.”

So far, the complaint has correctly alleged the elements of defamation – a statement made about another person that is false.

Of course, this statement also needs to be published – that is, made to another person.

So whom did Lynch publish these statements to, according to the complaint?

To A.J. Daulerio, the Editor in Chief of Deadspin, a website that posts, among other things, sports commentaries and rumors.

For example, Deadspin was the first media outlet to report on NFL quarterback Brett Favre’s alleged sexual misconduct toward journalist Jenn Sterger.

Erin Andrews

ESPN reporter Erin Andrews

However, instead of waiting for Deadspin to “break the news” about his supposed risqué in-flight encounter with Ms. Andrews, Clinkscales filed this lawsuit preemptively in an attempt to contain the damage.

Hot Doc: Clinkscales v. Lynch

Source: Thomson Reuters News & Insight – National Litigation

The Hollywood Reporter’s Eriq Gardner thinks that this was a bad move, though, since filing the lawsuit may have damaged his image more than the original allegations.

Moreover, Gardner claims that the speedy lawsuit doesn’t prevent Deadspin from reporting on the rumors (since no injunction was requested), and that it further insulates the website from defamation liability.

But none of that is actually true.

First, the lawsuit certainly didn’t damage his image more than the original false statements.

While the suit indeed was the first to break the story to the public, it introduced Lynch’s allegations not as rumors, but as legally actionable defamation.

Likewise, Clinkscales himself is presenting the narrative, thereby disabling the favorite media tactic of catching a public figure “with his pants down.”

Next, Deadspin definitely isn’t shielded from liability.

If anything, the website has much more to worry about when reporting on the story than any other media outlet, since, according to the complaint, the statements were published to it before the lawsuit was filed.

Specifically, Deadspin will have to go out of its way to abstain from making any insinuations as to veracity of Lynch’s statements or anything else that could be construed as republication.

Lastly, the lawsuit shouldn’t affect a damages calculation much if at all.

Lynch’s statements are very likely defamatory per se, so the existence of damage because of the statements is assumed by the court.

Second, it seems unthinkable that the plaintiff in a defamation action is in any way faulted for bringing the lawsuit to begin with, even if that only translates into a reduction of a damages award.

In fact, the responsibility of mitigating the harm done by a false statement falls squarely on the individual who publishes it, leaving Lynch with the responsibility to publicly retract her statements or face a higher damages award.

All of this assumes, of course, that Lynch’s statements are false, but given the many circumstances of this situation (the complaint has a lot more to it), it seems the likely scenario.

Finally, despite media commentary to the contrary and for all of the reasons given above, Clinkscales made the correct decision in filing the defamation lawsuit before the statements were independently released to the public.